Medical negligence is an offence that needs to be adjudicated per exceptions/exemptions provisions.

Exceptions provide a licensed physician exemption from any liability
Causing bodily harm/injury is an offence. However, in medical/surgical treatment of a disease, injury being its inevitable consequence, though technically an offence of 'harm', 'injury', 'grievous injury' or 'homicide', is not considered an offence by itself. In what exceptional circumstances a medical act becomes an actionable offence, is the bone of contest – medical negligence.

Negligence is an undefined legal entity. As per the judicial construct:
The jurisprudential concept of negligence defies any precise definition. Eminent jurists and leading judgments have assigned various meanings to negligence. The concept as has been acceptable to Indian jurisprudential thought is well-stated in the Law of Torts, Ratanlal & Dhirajlal (Twenty-fourth Edition 2002, edited by Justice G.P. Singh). It is stated (at p.441-442) ___

"Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property. The definition involves three constituents of negligence:

1. A legal duty to exercise due care on the part of the party complained of towards the party complaining the former's conduct within the scope of the duty;
2. breach of the said duty; and
3. consequential damage. Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort." (emphasis added).

It may be noted that negligence is actionable only when 'plaintiff has suffered injury to his person or property' and 'Cause of action for negligence arises only when damage occurs'.

In medical negligence i.e. a negligent a act of a physician while treating a patient, when it causes bodily damage, physical, physiological or functional, to the patient, that it becomes a cause of action and gives rise to actionable claim.

Causing bodily harm/injury is an offence under Bhartiya Nayaya Sahinta (BNS) 2023, formerly Indian Penal Code IPC.

Hurt: Injury/hurt as an offence is defined as under:
BNS Sec2(14)"injury" means any harm whatever illegally caused to any person, in body, mind, reputation or property;IPC 44

Sec2(15)"illegal"- "legally bound to do". —The word "illegal" is applicable to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action; and a person is said to be "legally bound to do" whatever it is illegal in him to omit;IPC 43

Sec 114 Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.IPC 319

Sec 115(1) Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt". IPC 321

Grievous injury: Another offence that may be caused by medical negligence is grievous injury:
Sec 116 The following kinds of hurt only are designated as "grievous", namely:

1. Emasculation.
2. Permanent privation of the sight of either eye.
3. Permanent privation of the hearing of either ear.
4. Privation of any member or joint.
5. Destruction or permanent impairing of the powers of any member or joint.
6. Permanent disfiguration of the head or face.
7. Fracture or dislocation of a bone or tooth.
8. Any hurt which endangers life or which causes the sufferer to be during the space of fifteen days in severe bodily pain, or unable to follow his ordinary pursuits. IPC 320

Sec 117(1) Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said "voluntarily to cause grievous hurt". IPC 322

The punishment prescribed for harm is commensurate with the gravity of the injury caused:
Sec 125 a,b . Whoever does any act so rashly or negligently as to endanger human life or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to three months or with fine which may extend to two thousand five hundred rupees, or with both, but:

1. where hurt is caused, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five thousand rupees, or with both;
2. where grievous hurt is caused, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine which may extend to ten thousand rupees, or with both.IPC 336, 337, 338

There is no such provision for medical negligence which is held to be a distinct and unique. Criminal medical negligence or an act of medical negligence that would attract criminal liability, are matters of judicial construct. Surgical procedures of amputations and removal of organs normally cause grievous hurt.

Negligence may amount to homicide by causing death due to rash and negligent act –

Sec 106(1) Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.IPC 304A

Sec 106 Whoever causes death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; and if such act is done by a registered medical practitioner while performing medical procedure, he shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine. (added in BNS)

All the above offences are part of criminal law and therefore criminal offences to be adjudicated as such. However, they attract both criminal and civil liabilities. Medical negligence is especially challenged under law of tort, civil law or common law, for civil liability for monetary compensation. The offence must be proved as per the provisions of law, before a civil or criminal liability is attracted or assigned.

Exceptions that protect from legal liability

All the above offences, are subject to:
3 (1) Throughout this Sanhita every definition of an offence, every penal provision, and every Illustration of every such definition or penal provision, shall be understood subject to the exceptions contained in the Chapter entitled "General Exceptions", though those exceptions are not repeated in such definition, penal provision, or Illustration. IPC 6

An exception renders an offence to be a 'non offence' that absolves the accused offender of any liability – civil or criminal.

Emerging medical negligence jurisprudence that protects physicians

The Hon'ble Supreme Court in its recent judgment has extensively reviewed earlier judgments on medical negligence to highlight how the emerging jurisprudence, taking cognizance of exemption clauses in Indian Penal Code (now Bhartiya Nyaya Sanhita 2023) has virtually decriminalized medical negligence.

The latest Supreme Court Judgment
Bombay Hospital vs Asha Jaishwal 2021 CIVIL APPEAL NO. 1658 OF 2010

29. In Martin F. D'Souza v. Mohd. Ishfaq , (2009) this court observed that the doctor cannot be held liable for medical negligence by applying the doctrine of res ipsa loquitur for the reason that a patient has not favourably responded to a treatment given by a doctor or a surgery has failed. There is a tendency to blame the doctor when a patient dies or suffers some mishap. This is an intolerant conduct of the family members to not accept the death in such cases. The increased cases of manhandling of medical professionals who worked day and night without their comfort has been very well seen in this pandemic.

This Court (Bombay Hospital vs Asha Jaishwal) held as under:
40. Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightaway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse.

42. When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalised for losing a case provided he appeared in it and made his submissions.

30. In case of medical negligence, this Court in a celebrated judgment reported as Jacob Mathew v. State of Punjab and Anr. (2005) held that simple lack of care, an error of judgment or an accident, is not a proof of negligence on the part of a medical professional. The Court held as under:-

48. We sum up our conclusions as under:

1. Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. (emphasis added vde supra) The essential components of negligence are three: "duty", "breach" and "resulting damage.
    
2. Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.

31. In another judgment reported as Arun Kumar Manglik v. Chirayu Health and Medicare Private Limited and Anr. ,(2019) this Court held that the standard of care as enunciated in Bolam case must evolve in consonance with its subsequent interpretation by English and Indian Courts. The threshold to prove unreasonableness is set with due regard to the risks associated with medical treatment and the conditions under which medical professionals' function. (emphasis added) The Court held as under:-

45. In the practice of medicine, there could be varying approaches to treatment. There can be a genuine difference of opinion. However, while adopting a course of treatment, the medical professional must ensure that it is not unreasonable. The threshold to prove unreasonableness is set with due regard to the risks associated with medical treatment and the conditions under which medical professionals function. This is to avoid a situation where doctors resort to "defensive medicine" to avoid claims of negligence, often to the detriment of the patient. Hence, in a specific case where unreasonableness in professional conduct has been proven with regard to the circumstances of that case, a professional cannot escape liability for medical evidence merely by relying on a body of professional opinion.

32. In C.P. Sreekumar (Dr.), MS (Ortho) v. S. Ramanujam , (2009) this Court held that the Commission ought not to presume that the allegations in the complaint are inviolable truth even though they remained unsupported by any evidence. This Court held as under:-

37. We find from a reading of the order of the Commission that it proceeded on the basis that whatever had been alleged in the complaint by the respondent was in fact the inviolable truth even though it remained unsupported by any evidence. As already observed in Jacob Mathew case [(2005) 6 SCC 1 : 2005 SCC (Cri) 1369] the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia.

33. In another judgment reported as Kusum Sharma and Others v. Batra Hospital and Medical Research Centre and Others (2010), a complaint was filed attributing medical negligence to a doctor who performed the surgery but while performing surgery, the tumour was found to be malignant. The patient died later on after prolonged treatment in different hospitals. This Court held as under:-

47. Medical science has conferred great benefits on mankind, but these benefits are attended by considerable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking risks. Every advancement in technique is also attended by risks.

78. It is a matter of common knowledge that after happening of some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. A professional deserves total protection. The Penal Code, 1860 has taken care to ensure that people who act in good faith should not be punished. Sections 88, 92 and 370 of the Penal Code give adequate protection to the professionals and particularly medical professionals."

34. Recently, this Court in a judgment reported as Dr. Harish Kumar Khurana v. Joginder Singh & Others (2021) held that hospital and the doctors are required to exercise sufficient care in treating the patient in all circumstances. However, in an unfortunate case, death may occur. It is necessary that sufficient material or medical evidence should be available before the adjudicating authority to arrive at the conclusion that death is due to medical negligence. Every death of a patient cannot on the face of it be considered to be medical negligence. The Court held as under:-

11. …….. Ordinarily an accident means an unintended and unforeseen injurious occurrence, something that does not occur in the usual course of events or that could not be reasonably anticipated. The learned counsel has also referred to the decision in Martin F.D'Souza v. Mohd. Ishfaq, (2009) 3 SCC 1 wherein it is stated that simply because the patient has not favourably responded to a treatment given by doctor or a surgery has failed, the doctor cannot be held straight away liable for medical negligence by applying the doctrine of Res Ipsa Loquitor. It is further observed therein that sometimes despite best efforts the treatment of a doctor fails and the same does not mean that the doctor or the surgeon must be held guilty of medical negligence unless there is some strong evidence to suggest that the doctor is negligent.

81. It is a matter of common knowledge that after happening of some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. A professional deserves total protection. The Indian Penal Code has taken care to ensure that people who act in good faith should not be punished. Sections 88, and 92 of the Indian Penal Code give adequate protection to the professional and particularly medical professionals. (emphasis added)

94. On scrutiny of the leading cases of medical negligence both in our country and other countries specially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:-

IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension. (Emphasis added)

In Kusum Sharma Ors vs Batra Hospital Med Research on 10 February 2010 the Hon'ble Supreme Court also observed as follows:-

The Indian Penal Code has taken care to ensure that people who act in good faith should not be punished. Sections 88 and 92 of the Indian Penal Code give adequate protection to the professional and particularly medical professionals (emphasis added) It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.

The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients.

The interest and welfare of the patients have to be paramount for the medical professionals . Both Sections 88 and 92 protect the doctor against any professional liability or allegations of medical negligence in situations when acts done for the benefit of the patient with or without his consent do not have the desired outcome. These sections provide that any act done in good faith is not negligence. Doctors should be aware of these sections as a defense against cases of negligence filed against them.

In Doctor Jacob Matthew Vs. State of Punjab the Honourable court opined against the judgment of Gupta's case. They questioned the adjective gross and opined that all negligent acts causing death should be treated at par. Section 304-A of IPC was a sword hanging above the doctor, working both in government hospitals and in the private sectors. Since long, this has been made a malady and they were practicing defensive medicine so much that even proper treatment/surgical procedures were being held back with the fear of untoward results because of which doctors continued to be sued for no fault of theirs.

The term gross is not a reference to Sec 304-A of IPC and also not in connection to negligence. So in the case of Doctor Jacob Mathew, the Punjab High Court argued that doctors could not be considered on a different pedestal as far as section 304-A is concerned. The land mark judgment of the three judges bench of Supreme Court in Jacob Mathew v. State of Punjab, practically absolves the medical professionals of the liability of section 304-A. (emphasis added).This is amply clear that Section 304 ,304-A of IPC, can be made applicable to the doctors theoretically but they can feel secured in doing usual practices without any fear, apprehension of being victimized on trivial grounds. The honourable court had gone through the details of the problems faced by medical professionals and this land mark judgment will no longer distort the doctor-patient relationship and benefit the patients in the long run.

This will also free the doctors from undue anxiety in the conduct of their professions. The bottom line of this land mark judgment is, while expectations from the professionals must be realistic and the expected standards attainable, this implies recognition of the nature of ordinary human error and human limitations in the performance of complex tasks. The level of competence of the doctors should be maintained by continuous medical education. Incompetence due to lack of knowledge or due to quackery should be actively discouraged by the regulating bodies and associations. The decisions will not only provide relief to the doctors, who had been considered as soft targets by the law enforcing agencies and stop their harassment by unsatisfied patients but would also increase the quality of service.

Provisions In Bharatiya Nyaya Sanhita, 2023 That Absolves A Physician Of Liability For Offences Caused By Medical Negligence: Basis Good Faith
Sec2(7)"dishonestly" means doing of an act with the intention of causing wrongful gain to one person or wrongful loss to another person; IPC 24

An act of providing treatment to a patient by a qualified and licensed physician can not be a dishonest act.

Sec2(11)"good faith".—Nothing is said to be done or believed in "good faith" which is done or believed without due care and attention; IPC 52

Doctrine of 'Good Faith' is the prime premise on which all the exemptions are granted from liability from an offence. This is a paramount consideration of the acts of medical professional. However, good intention is not good faith. This section qualifies that an act to be accepted to have been done in good faith must have been done with 'care and attention'. This is a negative definition. Circumstances that evidence good faith are easily provided by physician from patient's medical record. It is then the duty of the complainant to prove bad faith or malafide.

Evidence Act 105. Burden of proving that case of accused comes within exceptions. ––When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.

Sec2(14)"injury" means any harm whatever illegally caused to any person, in body, mind, reputation or property; IPC 44

Sec2(15)"illegal"- "legally bound to do". —The word "illegal" is applicable to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action; and a person is said to be "legally bound to do" whatever it is illegal in him to omit; IPC 43

An injury to constitute an actionable harm (Negligence) should have been illegally caused.

An act of qualified and licensed surgeon/physician causing all the bodily injuries, intended or unintended, as part of treatment is legal; he is legally bound to provide the treatment when approached by a patient.

Sec 3(1) Throughout this Sanhita every definition of an offence, every penal provision, and every Illustration of every such definition or penal provision, shall be understood subject to the exceptions contained in the Chapter entitled "General Exceptions", though those exceptions are not repeated in such definition, penal provision, or Illustration. IPC 6

Illustrations.

1. The sections, in this Sanhita which contain definitions of offences, do not express that a child under seven years of age cannot commit such offences; but the definitions are to be understood subject to the general exception which provides that nothing shall be an offence which is done by a child under seven years of age.

Thus all 'general exceptions' apply to all the offences in this Act. Every offence is to be considered subject to the exceptions. Exceptions are the basic statutory defence. Exceptions decriminalise.

GENERAL EXCEPTIONS
Sec 14.Nothing is an offence which is done by a person who is, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be, bound by law to do it.1PC 76

Treatment provided by a licensed practising physician falls in this category. Good faith is basis of exception.

Sec 15. Nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law. IPC 77

Judicial officers are exempted from any liability for their judicial decisions and acts on the ground of good faith. Physicians are also entitled to similar exemption from liability for their medical decisions and acts done in good faith.

Sec 17.Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it. IPC 79

Act of a physician to provide treatment for a disease is justified in law.

Sec 18.Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution. IPC80

A duly qualified and licensed physician providing treatment per medical norms, does so in 'lawful manner and lawful means. He does so with the consent of the patient. There can not be any intent to harm the patient by the treatment (care). Any unintended injury/harm is by 'accident or misfortune'. Its not an offence.

Sec 19.Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property. IPC81

Explanation. It is a question of fact in such a case whether the harm to be prevented or avoided was of such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm.

A disease causes continuous harm to the patient. The patient approaches a doctor to intervene to prevent it. The treatment – surgery, especially ablative surgeries – cause intended harm. The patient consents for it. The physician has done it to 'preventing or avoiding other harm to person'. He has no criminal intent to harm his patient.

Sec 25.Nothing which is not intended to cause death, or grievous hurt, and which is not known by the doer to be likely to cause death or grievous hurt, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, to any person, above eighteen years of age, who has given consent, whether express or implied, to suffer that harm; or by0 reason of any harm which it may be known by the doer to be likely to cause to any such person who has consented to take the risk of that harm. IPC 87

Short of death and grievous hurt, harm can be caused, provided a competent person has consented to suffer that harm.

Sec 26.Nothing, which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm. IPC 88

Illustration.
A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under the painful complaint, but not intending to cause Z's death, and intending, in good faith, Z's benefit, performs that operation on Z, with Z's consent. A has committed no offence.

Sections 25 and 26 of BSN are provisions that spell statutory parameters for physician to act on – intervene on human body. The three ingredients are Benefit, Consent and Good Faith. Good faith, as defined in Sec 2(11) BSN, is established by the legal competence of the doctor in terms of qualification and license, care and attention by record of patient's treatment for his benefit, and proof of consent to be legally authorised to provide the treatment. These provide tangible evidence to satisfy the legal principles and fictions evolved by judiciary to asses negligence, especially the criminal liability. Good faith is the basis.

Sec 28. A consent is not such a consent as is intended by any section of this Sanhita:

1. If the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or 1PC 90

A consent given without force, fear or fraud – is valid consent.

Sec 30. Nothing is an offence by reason of any harm which it may cause to a person for whose benefit it is done in good faith, even without that person's consent, if the circumstances are such that it is impossible for that person to signify consent, or if that person is incapable of giving consent, and has no guardian or other person in lawful charge of him from whom it is possible to obtain consent in time for the thing to be done with benefit: IPC 92

All the above exceptions are applicable to Sec 106(1) under which death by rash or negligent act is a punishable offence.

Sec 100.Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. IPC 299

A physician never provides a treatment with the intention to kill the patient.

Sec 106.(1) Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 1PC 304 A

As per the above stated exceptions a:
Is exempted from any liability for injury to the patient. The physician has committed NO offence.

The paramount doctrine of Good Faith is the basis of statutory protection (exemption) under clauses 14, 17, 18, 19, 25, 26 and 30 of Bhartiya Nyaya Sanhita 2025.

Sec 25 and 26 state as under:
Sec 25.Nothing which is not intended to cause death, or grievous hurt, and which is not known by the doer to be likely to cause death or grievous hurt, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, to any person, above eighteen years of age, who has given consent, whether express or implied, to suffer that harm; or by reason of any harm which it may be known by the doer to be likely to cause to any such person who has consented to take the risk of that harm. IPC87

Sec 26.Nothing, which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm. IPC 88

Illustration:
A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under the painful complaint, but not intending to cause Z's death, and intending, in good faith, Z's benefit, performs that operation on Z, with Z's consent. A has committed no offence.

IPC sections 87, 88, 90 and others have been invoked by Hon'ble Supreme Court to provide protection and exemption to physicians in medical negligence cases. Vide supra.

Good Faith is defined as:
Sec 2(11) "good faith".Nothing is said to be done or believed in "good faith" which is done or believed without due care and attention; IPC52

Care and attention are the two ingredients of Good Faith.

In medical treatment 'care' means attending to the medical needs of the patient by providing treatment, and 'attention' means after duly assessing his medical needs of the patient after examination, investigations and diagnosis.

A medical record is proof positive that care and attention has been provided to the patient.

Definition of Good Faith in General Clauses Act is also relevant in this context:
Clause (22)Gen Clauses Act: A thing shall be deemed to be done in "good faith" where it is in fact done honestly, whether it is done negligently or not;

It may be noted that 'honesty' in the act is the criteria of 'Good Faith'. A duly qualified, licensed and competent doctor proving treatment to the patient with his consent, he, ' shall be deemed to be done in "Good Faith" whether done "negligently or not."

For justifiable bodily 'harm/injury' to be exempted from liability, it is further stipulated in Clause 26 of BNS that besides 'Good Faith' the act of treatment should be for the 'Benefit' of the patient and with his 'Consent', 'express or implied'.

A duly executed informed consent as per Clause 28 of the BSN is sufficient for exemption from liability for the harm caused by the treatment. It is also a proof that the physician has exercised due caution.

It may also be noted that an act that caused bodily harm to be actionable should be 'illegal' vide clause 2(15) and 2(14) of the BNS -

Sec 2(14)."injury" means any harm whatever illegally caused to any person, in body, mind, reputation or property; IPC 44

Sec 2(15)."illegal"- "legally bound to do". —The word "illegal" is applicable to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action; and a person is said to be "legally bound to do" whatever it is illegal in him to omit; IPC 43

An act of providing treatment by a duly licensed medical practitioner cannot be an 'illegal'. He is legally bound to provide a treatment when approached by a patient.

Sec 114 Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt. IPC 319

Sec 115(1) Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt". IPC 321

Sec 115(2) Whoever, except in the case provided for by sub- section (1) of section 120 voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both.

Sec 116 The following kinds of hurt only are designated as "grievous", namely:

• (i) Emasculation.
• (j) Permanent privation of the sight of either eye.
• (k) Permanent privation of the hearing of either ear.
• (l) Privation of any member or joint.
• (m) Destruction or permanent impairing of the powers of any member or joint.
• (n) Permanent disfiguration of the head or face.
• (o) Fracture or dislocation of a bone or tooth.
• (p) Any hurt which endangers life or which causes the sufferer to be during the space of fifteen days in severe bodily pain, or unable to follow his ordinary pursuits. IPC 320

Sec 117(1) Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said "voluntarily to cause grievous hurt". IPC 322

It may be noted that removal of a limb by amputation or kidney, spleen, intestine, eye, larynx etc etc by ablative surgery, though technically causing grievous hurt does not constitute an offence as the same is done with the consent of the patient and in good faith to benefit him. All voluntary injuries caused by a physician have to be dealt at a different level. All invasive procedures performed by a physician are inherently injurious. Exceptions provide exemption to a physician for all his acts done in good faith.

Exceptions are statutory protection against liability for an offence. They are available to a medical practitioner irrespective whether the case is filed for civil liability or criminal liability.

The following High Court judgments have dealt with the subject in details:

• Ganesh Chandra Saha vs Jiw Raj Somani on 10 April, 1964
• Dr. Deepa Sahai @ Deepa Kumari (Sahai) ... vs State Of Bihar & Anr on 21 June, 2017
• Dr. Hemchandra Lal Karn vs State Of Bihar And Anr on 1 October, 2019
• Ambika S. Nagal vs State Of Himachal Pradesh on 10 June, 2020

Written By: Dr.Shri Gopal Kabra
15, Vijaya Nagar, D-Bock, Malviya Nagar, Jaipur-302017
Email : [email protected] Mobile: 8003516198